Commentary

Court Must Buck Political Pressure in Pledge Case

It would be wrong to uphold the 'under God' clause. It clearly is unconstitutional.

October 15, 2003|Erwin Chemerinsky | Erwin Chemerinsky is a professor of law and political science at the University of Southern California.

In early September, my 5-year-old daughter came home from school and showed us how she had learned to recite the Pledge of Allegiance.

Although she was just beginning her second week of kindergarten, she demonstrated how she knew all the words. As she recited, "one nation under God," my wife remarked that students didn't have to say those words.

My daughter immediately responded, "Yes, you do, or you get sent to the principal's office."

I am sure that the teacher in her public school never told the students that they had to recite "under God," but children feel enormous pressure to conform, even in their first days of school.

For more than 40 years, the U.S. Supreme Court has said that even voluntary prayer in public schools violates the 1st Amendment, which states that Congress shall make no law respecting an establishment of religion. The court has held that it is impermissible to begin a school day with a recitation of a Bible verse or the Lord's Prayer or a nondenominational prayer. Similarly, the court has said it is an improper establishment of religion to have a clergy member recite a prayer at a public school graduation or for a student to say a prayer before a high school football game.

The court has explained that, in the context of public schools, it is not realistic to expect children, regardless of their beliefs, to refuse to participate while others pray. The court often has spoken of the inherently coercive nature of a classroom, especially one with young children.

For this reason, the U.S. 9th Circuit Court of Appeals held that it violated the establishment clause of the 1st Amendment to have children in public schools recite the words "under God" in the Pledge of Allegiance. On Tuesday, the U.S. Supreme Court agreed to review the case.

As a matter of 1st Amendment law, this should be an easy case. The high court should affirm the 9th Circuit's decision and hold that it is not for the government to encourage students to express a religious belief.

But from a political viewpoint, it's another matter. This is a highly charged issue, and has been since 1954 when the words "under God" were added to the pledge as part of the war on "godless communism."

So even though the law is clear, the political firestorm surrounding this case could well cause the court to uphold the current pledge. In June 2002, there was an overwhelming outcry -- including by Congress -- against the 9th Circuit's ruling declaring the pledge's "under God" unconstitutional. Few court decisions have been so widely denounced, and the Supreme Court is surely mindful of this.

Yet imagine if the Pledge of Allegiance said that this was "one nation under Jesus." There is no doubt that any judge in the country would declare this unconstitutional as an impermissible establishment of religion. And non-Christians would be outraged if their children were asked to say "under Jesus." So, those who reject theistic religions rightly object to having their children affirm that this is "one nation under God."

Those who defend the words "under God" in the pledge say it is just ceremonial and no different than the words "In God We Trust" on money or "God save this honorable court" being invoked before Supreme Court sessions. There is a huge difference: No one is required to say "In God We Trust" in order to spend money or to utter "God save this honorable court" in order to argue before the justices. But students are expected, or at least requested by the government, to say that this is a nation "under God." Pressuring kids to affirm such a religious belief is the very essence of impermissible establishment of religion.

Some contend that omitting the words "under God" from the Pledge of Allegiance constitutes hostility toward religion. Quite the contrary, the goal is to be neutral toward religion. The law is clear: It is impermissible to hold religious ceremonies in public schools. There's nothing hostile in pointing out that asking students to affirm a belief in God is an inherently religious act. The place for religious declarations, including a belief in God, is in our hearts, our homes and our places of worship -- but not in official public school activities.

At the height of the controversy over the 9th Circuit's decision, the comedian Robin Williams offered a solution for the pledge: Change it to say "one nation under Canada."